OU (Migration)

[2018] AATA 4373

OU (Migration) [2018] AATA 4373 (27 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr XUXIANG OU

CASE NUMBER:  1707824

HOME AFFAIRS REFERENCE(S):           BCC2017/826525

MEMBER:Stephen Conwell

DATE:27 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 September 2018 at 6:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – pursue different career qualifications – de facto partner’s residency status – disparity in economic and political situation – value of new course – existing qualifications – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. On 29 May 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 12 June 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicant would lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments.

5. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refer to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

6. The applicant was assisted in relation to the review by his registered migration agent (‘representative’).

7. The Tribunal wrote to the applicant on 29 May 2018 requesting information under s.359(2) of the Act in the following terms:

   ·       As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

   ·       Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

8. The invitation was sent to the applicant’s representative and advised that, if the information was not provided in writing by 12 June 2018 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. On 12 June 2018 the representative emailed the applicant’s response to the 359(2) questionnaire. In his response the applicant advised that he consented to the Tribunal deciding his review without a hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

12. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·       the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·       the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·       if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·       any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. The applicant provided the following material to the Department:

    ·       COE –  Diploma of  Remedial Massage (15/02/2017 – 08/08/2018, DIBP fol. 17)

    ·       Overseas Student Confirmation of Health Cover  to 30/09/2018, (DIBP fol. 18)

    ·       copy of the applicant’s bio data page from his passport (DIBP fol. 19)

    ·       GTE Statement as follows (DIBP fol. 20) stating:

    oWhilst pursuing his business studies in Australia he worked as a part-time massage therapist in a traditional Chinese massage parlour.

    oHe found the massage industry better suited his personality than working in business or accounting.

    oHe therefore decided to pursue a career in massage and requires the formal qualifications in order to pursue this career back in his home country of China.

16. According to his completed s.359(2) questionnaire, whilst in Australia the applicant:

    ·       completed the following qualifications:

    oBachelor of Business in June 2012 (Ballarat University)

    oMaster of Professional Accounting in June 2015 (Federation University)

    ·       works as a massage therapist at Yin’s Chinese Traditional Massage (commenced February 2011) for an annual salary of $30,000

    ·       has annual living costs estimated to be $28,440

    ·       has a de facto partner who now resides in her home country of Cambodia.

17. The delegate’s decision made the following findings:

    ·       the applicant –

    ofirst arrived in Australia on 9 February 2011 on a Student visa (TU 573) to study Master of Commerce;

    ocompleted the Master of Commerce (Professional Accounting) in June 2015;

    owas granted a temporary subclass 485 dependent visa for the period 18 September 2015 – 18 March 2017;

    osubmitted no evidence of employment since completion of his studies.

    ·       Given the applicant’s qualifications in business and commerce, the delegate was not satisfied that studying towards a Diploma of Remedial Massage would improve the applicant’s career prospects or remuneration levels on his return to China.

    ·       There was no evidence that the applicant had not been substantially compliant with his visa conditions.

    ·       The applicant produced no evidence of personal or economic ties to his home country, which diminish any incentive for him to return on completion of his studies.

    ·       The applicant’s de facto partner is applying for residency in Australia.

    ·       There were no other relevant matters to be considered.

18. The Tribunal has regard to:

    ·       all of the evidence outlined above

    ·       the applicant’s GTE statement

    ·       the applicant’s immigration history

    ·       all other evidence and information on the Department and Tribunal files

    ·       Direction 69.

    Direction 69

19. The Tribunal has regard to the applicant’s circumstances in his home country. The applicant’s ties to his home country appear limited. His father died in 2012, however the Tribunal accepts that he has other immediate family in his home country.

20. The applicant did not tender evidence of any business interests, property holdings or other assets in his home country or of any plans to establish a business on his return to China. His de facto partner is a Cambodian national and it appears that she has returned to live Cambodia. The Tribunal notes the delegate’s comment that she is applying to reside in Australia.

21. Since his arrival in Australia it appears that the applicant has made six visits back to China. Nevertheless, the applicant did not outline any circumstances that would serve as a significant incentive to return to his home country.

22. The Tribunal has regard to the applicant’s potential circumstances in Australia. The applicant appears not to have any strong personal relationships in Australia, however he has worked consistently since his arrive and appears to earning a good wage as a massage therapist of approximately $30,000 annually. He would be aware, and supportive, of his de facto’s efforts to obtain residency in Australia, which would be an incentive to prolong his stay in Australia.

23. The Tribunal also takes into account the economic circumstances and political climate in the applicant’s home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for him to seek to use the Student visa program to maintain ongoing residence in Australia.

24. The Tribunal has regard to the value of the course to the applicant’s future. The applicant has not provided evidence of finding employment in a business or accounting context following completion of his Bachelor and Master’s degrees.  Having spent a great deal of time and money on attaining two highly regarded university qualifications, the Tribunal is not convinced that the applicant genuinely intends to pursue a career in massage therapy. Nor is it satisfied that completing the remedial massage course will enhance the applicant’s career or remuneration prospects offshore.

25. The applicant’s GTE statement refers to a ‘booming’ massage industry in China however no evidence or information was provided to support such a bold statement. The applicant did not provide any information as to approaches or responses from potential employers in his home country. The applicant did not provide any information as to where he might gain employment or in what capacity in his home country.  Given the applicant’s university qualifications, the Tribunal finds that little value in the diploma course to the applicant’s future.

26. The Tribunal has grave doubts that the applicant’s visa application is motivated by a genuine desire for academic progression. He has completed a bachelor’s and master’s degree, the latter being the reason for his entry into Australia.  Rather than returning overseas after obtaining these University qualifications, the applicant inexplicably is seeking to remain onshore in order to complete a diploma course in remedial massage.  The Tribunal finds this VET enrolment to be a regressive step from the applicant’s university qualifications. 

27. The applicant has been onshore since February 2011. The Tribunal has regard to the applicant’s immigration history and notes the delegate’s comment that there was no evidence  to suggest that the applicant has not substantially complied with the conditions of his several visas during his time in Australia.

28. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to China and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

29. The above factors cumulatively indicate the applicant is not a genuine Student. Rather, the applicant appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and the applicant does not genuinely intend to stay in Australia temporarily.

30. Overall, given, his study history and his regression from Higher Education to the VET sector, his potential circumstances in Australia, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent permanent migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he intends to stay in Australia temporarily.

31. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

33. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Stephen Conwell
    Member